What, if anything, have the hearings revealed so far about Sotomayor as a Supreme Court justice? What have the hearings revealed about members of the Judiciary Committee?

July 15, 2009

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Send to a friendWhat, if anything, have the hearings revealed so far about Sotomayor as a Supreme Court justice? What have the hearings revealed about members of the Judiciary Committee? Join this discussion on Facebook.July 15, 2009

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Unfortunately the hearings have revealed little other than that both Judge Sotomayor and the members of the Judiciary Committee prepared very carefully for what is a remarkably unhelpful and misleading process. Unlike a federal district court or a United States court of appeals, the Supreme Court has a discretionary and not mandatory docket, and can thus decide which cases to hear.

More importantly, for the past five years the Court has chosen to decide only about 70 cases a year (down from about 150 in the 1980s), from the approximately 9000 a year it is asked to decide. Once we recognize this, it becomes apparent that these 70 cases a year are ones in which there is virtually no clear law, and thus ones in which plausible legal arguments from text and precedent can be made on both sides.

It should come as no surprise, therefore, that serious empirical research over the past several decades has made clear that for the Supreme Court, and especially for high-salience cases with great moral and political import, the largest determinant of a Justice's decision are the Justice's moral, ideological, and political attitudes.

Once we see that this is an inevitable function of the tiny number of cases the Court decides, the way in which they are chosen, and the filtering process (the selection effect) that winnows down the number of cases from the hundreds of thousands filed every year to the seventy that wind up in the Supreme Court, it would be good if the process made this phenomenon more transparent, and thus if the process frankly focused on a judge's substantive policy views (including indirect indicators of those views) about issues such as affirmative action, presidential power, the role of religion in public life, abortion, the balance between fighting crime and protecting the rights of criminal defendants, the relative roles of the states and the federal government, sexual orientation, etc.

It is these substantive policy attitudes that the research has shown will most determine a Justice's views, but the process is designed to conceal this, and thus to suggest to the public that being a Supreme Court Justice is very much like being a trial judge or a judge of a lower appellate court, domains in which there are far more easy cases and in which straightforward application of text and precedent far more often determines the outcome. But as long as the process on both sides is devoted to concealing the relative importance of a Justice's substantive moral, social, political, and policy attitudes, it is a process that is destined to remain more charade and theater than anything else.

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